N° CITEO / FR215384_01ZSLO Version 02.2023 Any order for goods or services implies the purchaser's express and unreserved acceptance of these General Sales Conditions ("G.S.C.").
1 - ESSENTIAL CHARACTER OF THESE GENERAL TERMS AND CONDITIONS OF SALE - These General Terms and Conditions of Sale cancel and replace those previously applicable and are essential and determining conditions of our contractual relations. Unless expressly waived in advance, these conditions apply notwithstanding any other clause or condition to the contrary, even if the purchaser has not returned to the seller, within 10 days of the date of issue, the sales contract previously sent to him. The fact that the seller does not invoke the present G.S.C. against the buyer at a given time cannot be interpreted as a waiver of its right to do so at a later date.
2 - GENERAL PRINCIPLES - In accordance with article L. 441-1-1 of the French Commercial Code, it is hereby specified that the seller has entered into contracts for the purchase of agricultural raw materials used in the composition of the Products in application of article L 631-24 of the French Rural and Maritime Fishing Code. In accordance with article L 441-1-1 I 3° of the French Commercial Code, and by virtue of business secrecy, whenever the seller's Prices have changed in relation to the previous year, the latter has chosen to have an independent Third Party intervene, at its own expense, to certify, in complete independence from the Parties and in accordance with the standards of its profession, that the negotiation of the Price agreed between the Parties has not covered the part of this change resulting from that of the price of agricultural raw materials. This certification will be provided in the form of a certificate within one month of signature of the Agreement. During the commercial negotiation, the seller and the buyer must communicate all information enabling the Independent Third Party to ensure the conformity of the negotiation and to exchange information fairly and in good faith in order to obtain such a certificate. Failing certification, the seller and buyer will meet within eight (8) days in order to reach a compliant agreement no later than two (2) months from the signing of the initial Agreement.
3 - RATE - The applicable rate is that in force on the date of the order, to which the current VAT rate must be added. Price reductions subject to the fulfilment of conditions, and in particular quantity discounts, are only definitively acquired if all the conditions for their attribution have been fulfilled: in particular, the payment of such discounts is subject to the express condition that all invoices payable on the scheduled dates have been settled by the fixed deadlines. Should these conditions not be met, the seller reserves the right to demand the return of any sums paid in advance. In the event of amicable settlement or receivership proceedings, any right to price reduction of any kind to which the purchaser might be entitled if he were not in default shall be cancelled de facto. Pursuant to the provisions of article L. 443-4 of the French Commercial Code, the determination of the Product Price takes into account several indicators relating to the relevant costs of production in agriculture and the evolution of these costs, as follows: . IPAMPA conventional cow's milk (source IDELE), . France Collecte Mensuelle (source France AGRIMER), . Actual milk price paid to producers (source France AGRIMER) including price supplements and/or rebates linked to composition, quality and compliance with specific specifications.
3.1 - AUTOMATIC REVISION CLAUSE - In accordance with article L. 443-8 of the French Commercial Code, the Price of the Products will be revised automatically in the event of a variation in the cost of the agricultural raw material used in the composition of the Products. It is specified that, by virtue of business secrecy, the seller will not communicate all the components of the Formula. Consequently, the seller chooses to call upon the independent Third Party to automatically revise the Price of the Products. In accordance with article L. 442-1 I. 4° of the French Commercial Code relating to non-discrimination, and given its direct effect on the agreed Price, the conditions apply identically to all Buyers, any derogation being subject to justification by real, proportionate and objective compensations.
3.2 - RENEGOTIATION AND IMPREVISION CLAUSE - In accordance with article L. 441-8 of the French Commercial Code, the Price of the Products may be renegotiated during the performance of the Agreement in the event of a +/- 10% fluctuation in the price of agricultural and food raw materials and products, energy, transport and packaging materials used in the composition of the Products. Renegotiations shall be conducted in good faith, within a period not exceeding one (1) month, and in compliance with industrial and commercial confidentiality and business secrecy.A report on these negotiations must be drawn up, in accordance with procedures defined by decree. If a new Price is agreed during the negotiations, it will be immediately applicable. In the event of a dispute during this renegotiation, the Parties will have recourse to the mediator for agricultural trade relations. Should the negotiations fail, the Buyer acknowledges the Seller's right, at the end of a period of three (3) months from the start of the negotiations, to suspend performance of the Agreement, and/or to reduce the contractual volumes of Products to be delivered and/or to terminate the Agreement. The Buyer hereby acknowledges having been given three (3) months' notice. In addition, the Buyer agrees to assume the risks arising from any unforeseeable change in the Seller's overall economic conditions which may affect the Price of the Products upwards. In such circumstances, the Parties agree to open a negotiation period not exceeding one (1) month. The agreed Price will apply immediately. Failing agreement, the SELLER reserves the right to cease supply, in whole or in part, of the Product(s) which are the subject of the failure to reach agreement on the Price, subject to a period of notice starting from the opening of negotiations. In any event, the SELLER will not be entitled to seek judicial determination of the Price as provided for in article 1195 of the French Civil Code.
4 - FORMATION OF CONTRACT - Orders or order confirmations received by the Vendor from the purchaser are final and binding on the Vendor only when they have been accepted by the Vendor, and the latter has sent the purchaser a sales contract or written order confirmation. Any modification or cancellation of an order requested by the purchaser will only be taken into consideration by the Vendor, without any obligation of acceptance, if it is received in writing before the shipment of the products or the commencement of the performance of the service, which the purchaser expressly accepts.
5 - SHIPMENT - RECEPTION - STORAGE - Unless otherwise agreed, goods travel at the buyer's risk. Sales are concluded on the basis of the C.C.I. INCOTERM in force at the time the contract is concluded. In the event of shortages, damage or delays in delivery, the purchaser must exercise his rights of recourse and lodge a complaint with the carrier in accordance with the terms of article L 133-3 of the French Commercial Code. Delays may not give rise to penalties for delay, deductions, damages or justify refusal or cancellation of the order in progress, whatever the causes, extent or consequences of the delays. Without prejudice to the measures to be taken with regard to the carrier, and under penalty of inadmissibility, any complaint must be sent to the seller by registered letter with acknowledgement of receipt within 5 days of the date of receipt of the products. It is the buyer's responsibility to provide proof of any anomalies or defects observed. All returnable handling equipment remains the property of the seller and must be maintained in good condition. Any non-returnable media must be exchanged by the seller on a number-for-number basis, without prejudice to invoicing by the seller in the event of a negative balance.
The purchaser undertakes to comply strictly with the conditions of storage and conservation of the products as prescribed in the seller's technical data sheets and in accordance with the recommendations of the International Dairy Food Association in force at the time of conclusion of the contract.
6 - NON-CONFORMITY - RETURN - All product returns are subject to the seller's prior written agreement. Any product returned without this agreement will not be accepted and will not give rise to any credit note. The costs and risks of return are at the buyer's expense. After quantitative and qualitative verification of the products returned with the seller's agreement, in the event of an apparent defect or non-conformity of the products delivered to the buyer, the seller will either replace them or reimburse the buyer, excluding payment of any compensation or damages. Neither unsold products nor products whose expiration date has been reached may be taken back.
7 - QUALITY - The seller guarantees that the quality and composition of its products comply with the standards and regulations in force, as laid down by Community and French regulations.
8 - PAYMENT - Unless otherwise agreed, and subject to regulated payment terms, all goods are payable on delivery, and services on completion, the price being exclusive of tax and for cash payment. In the event that, notwithstanding the foregoing, payment terms have been agreed, the modification of the due dates appearing therein or the non-payment of a single bill of exchange or invoice on its due date shall render all claims against the purchaser due and payable immediately and by operation of law, even if not yet due and/or even if relating to other contracts and orders.
In addition, and without prejudice to any other action, any delay in payment on the due date will entail the payment of a penalty equal to three times the legal interest rate, from the first day of delay until full payment. In addition, late payment automatically entails the payment of a flat-rate indemnity of 40 euros for collection costs. This penalty may be deducted from any discounts, rebates and/or credit notes granted.
Late payment interest invoiced to the purchaser is not taken into account in the calculation of the rebate.
In the event of non-performance by the purchaser of any of its obligations, the seller shall have the right, 48 hours after formal notice by registered letter with acknowledgement of receipt has remained without effect, to consider the sale terminated ipso jure.
In the event of payment made on a date prior to the contractual due date, the discount rate may be calculated on the basis of a percentage shown on the front of the sales invoice.
Disputes relating to delivery or invoicing do not suspend payment under any circumstances.
Any deterioration in the purchaser's credit may at any time justify, depending on the risks incurred, the setting of a ceiling on the purchaser's overdraft, the requirement of certain payment deadlines, cash payment or other guarantees. Should these guarantees not be obtained, the seller reserves the right to refuse to execute the order.
9 - RETENTION OF TITLE - IT IS HEREBY STIPULATED AND UNCONDITIONALLY AGREED BY THE BUYER THAT THE PRODUCTS DELIVERED REMAIN THE PROPERTY OF THE SELLER UNTIL FULL PAYMENT OF THEIR PRICE IN PRINCIPAL AND ACCESSORIES.
THE PURCHASER RELEASES THE SELLER FROM THE OBLIGATION TO MENTION THIS RETENTION OF TITLE CLAUSE ON ANY OTHER DOCUMENT.
NOTWITHSTANDING THIS RETENTION OF TITLE, THE BUYER ASSUMES THE RISK OF THE GOODS UPON DELIVERY. UNTIL FULL PAYMENT OF THE PRICE, HE SHALL BE OBLIGED TO TAKE THE UTMOST CARE OF THEM.
GOODS DELIVERED AND NOT YET FULLY PAID FOR IN PRINCIPAL AND ACCESSORIES MUST THEREFORE APPEAR SEPARATELY IN THE BUYER'S INVENTORY. OTHERWISE, GOODS IN STOCK WITH THE PURCHASER OR HIS REPRESENTATIVE SHALL BE DEEMED TO BE UNPAID GOODS. IN THE EVENT OF THE INCORPORATION OF NEW MATERIALS INTO THE GOODS DELIVERED, THE SELLER RETAINS CO-OWNERSHIP FOR THEIR INITIAL VALUE.
IN THE EVENT OF NON-PAYMENT BY THE DUE DATE, IRRESPECTIVE OF THE CESSATION OF ANY FURTHER DELIVERIES, THE SELLER RESERVES THE RIGHT TO TAKE BACK THE GOODS DELIVERED AT THE BUYER'S EXPENSE. THE SELLER IRREVOCABLY ASSIGNS TO THE BUYER HIS OWN CLAIMS AGAINST HIS PURCHASERS, UP TO THE AMOUNT OF HIS DEBT TO THE SELLER, EXCEPT IN THE CASE OF IMMEDIATE PAYMENT.
ADVANCE PAYMENTS MAY BE RETAINED TO COVER LOSSES AND COSTS INCURRED BY THE RETURN OF THE GOODS, WITHOUT PREJUDICE TO ANY OTHER DAMAGES.
10 - FORCE MAJEURE / EVENTS INDEPENDENT OF THE SELLER'S WILL - The seller is released from any obligation to deliver in the event of force majeure, in which case the buyer waives any right to claim damages.
The seller may not be held liable in the event of non-performance of its obligations due to force majeure. In such a case, the seller undertakes to notify the buyer of its existence as soon as possible and to do its best to limit the consequences.
The occurrence of a case of force majeure has the effect of suspending
The performance of the seller's contractual obligations and exonerate him from any payment of penalty/indemnity. Performance of obligations will resume as soon as the event constituting force majeure has ceased.
However, if the event constituting force majeure persists beyond sixty (60) days, the Parties may automatically and immediately terminate the commercial relationship, without compensation on either side.
Force majeure is any event beyond the control of the seller which prevents the proper performance of its obligations. It is expressly agreed that cases of force majeure include those provided for by law and accepted by French jurisprudence, as well as, by extension, elements specific to the activity of the Parties, such as : shortage or lack of raw materials (drop in collection... ), compulsory liquidation of one of the seller's vendors or subcontractors, war, riots, insurrection, embargoes, social unrest, total or partial strikes hampering the smooth running of factories or those of vendors, subcontractors or carriers, lockouts, health problems, health crises, transport disruptions, supplies and raw materials, lack of energy or fuel, exceptional weather conditions, natural disasters, fire, flooding, pollution, production problems due to fortuitous breakdowns, temporary shutdown of all or part of the seller's facilities, any administrative restriction or injunction, etc.
f the case arises, and after having informed the purchaser in advance, the seller reserves the right to reduce the quantities requested, in particular according to the availability of raw material(s).
11 - EXCEPTIONAL MEASURES - In the event of exceptional measures emanating from the Government or any other local, national or international public authority involving embargoes or restrictions on imports or exports, isolation measures, restrictions on the movement of persons and goods or any other legal, regulatory or administrative restrictions or prohibitions (hereinafter the "Event"), the goods and/or services offered by the SELLER may be adversely affected. Even if the SELLER endeavors to take the necessary measures to mitigate the potential impact of the Event, the Agreement may still be affected by the Event.
In particular, the Event and its effects may :
12 - CSR - The buyer declares that he is aware of the seller's CSR policy, which is fully enforceable against him in all its provisions.
https://www.ingredia.fr/engagements/
13 - JURISDICTION AND APPLICABLE LAW - Any dispute arising from the validity, interpretation or performance of these G.S.C., and consequently of any order or contractual obligation, shall fall within the EXCLUSIVE JURISDICTION OF THE ARRAS COMMERCIAL COURT, even in the event of summary proceedings, incidental claims or multiple defendants, it being understood that the questioning of the validity of one provision of these G.S.C. shall not affect all of these G.S.C..
These General Terms and Conditions of Sale are governed by French law. In the event of a dispute, only the French version of the G.T.C. shall be deemed authentic.